In the State of Michigan, there are two different breath tests.  The first is the Preliminary Breath Test or PBT and the 2nd is the Data Master Test.  The PBT is a hand held device that the police will request a person under investigation for OWI to take.  MCL 257.625a(2) provides that “[a] peace officer who has reasonable cause to believe that a person” was operating while intoxicated may require the person to submit to a “preliminary chemical breath analysis.”

The Preliminary Breath Test (PBT)

BreathalyzerThe police may arrest a person based on the PBT results, in that the result of the test can form the basis for probable cause to arrest.  The PBT is usually administered along with an array of field sobriety tests.  Most field sobriety tests can be subjective, in that they rely on the officer to properly describe the performance of the test, ie walk the line, finger to nose, counting, etc., and whether a person fails in grade only by the police officer.  Most police want you to take the PBT in that it is considered to more objective.

The PBT has limited admissibility at trial. Refusal to take the PBT results in no points or license sanctions, as it is not part of the implied consent law thus, refusal to take the PBT is a civil infraction punishable only by a fine of one hundred dollars. MCL 257.625a(2)(d). Refusal of the PBT by an operator of a commercial motor vehicle is a misdemeanor, punishable by 93 days, a $100 fine, or both, and will result in a 24-hour out-of-service order. MCL 257.625a(4)(5).  Therefore, many times it would be wise to refuse the PBT test. It is only a hundred dollar fine and the police may be likely to arrest you in any case, because you, in the opinion of the police officer failed a field sobriety test.

The results of a PBT are admissible in court only in the following circumstances:

  1. To assist the court in determining a challenge to the validity of the arrest.
  2. “As evidence of the defendant’s breath alcohol content, if offered by the defendant to rebut testimony elicited on cross-examination of a defense witness that the defendant’s breath alcohol content was higher at the time of the charged offense than when [an evidentiary] chemical test was administered.”
  3. “As evidence of the defendant’s breath alcohol content if offered by the prosecution to rebut testimony elicited on cross-examination of a prosecution witness that the defendant’s breath alcohol content was lower at the time of the charged offense than when [an evidentiary] chemical test was administered.”

The Data Master Test

Data Master Alcohol TestThe Data Master is a chemical test that is admissible in court as proof of the level of alcohol in the blood stream of a defendant.  In Schmerber v California, 384 US 757 (1966), the United States Supreme Court held that the self-incrimination clause of the Fifth Amendment applies only to testimonial evidence and not to physical evidence and therefore a blood sample or breath sample obtained by police to determine alcohol content is admissible and further that there is no Sixth Amendment right to counsel at such a tests are administered.  The Supreme Court also held that a warrantless blood draw administered by a physician at a hospital at the request of the police following a legal stop and arrest for drunk driving is not an unreasonable search under the Fourth and Fourteenth Amendments where emergency circumstances did not allow the police time to obtain a search warrant.

The Schmerber decision have allowed the various states to pass so-called “implied consent” laws requiring motorists to submit to police requests to take chemical tests of their breath, blood, or urine for alcohol content following a drunk driving arrest.  MCL 257.625c et seq. is Michigan’s implied consent law. In Collins v Secretary of State, 384 Mich 656, 668, 187 NW2d 423 (1971): “The immediate purpose of the ‘implied consent law’ is to obtain the best evidence of blood alcohol content at the time of the arrest of a person … . The long range purpose is, of course, to prevent intoxicated persons from driving on the highways.” (Citation omitted.)

Michigan’s Implied Consent Law

Michigan’s implied consent law, MCL 257.625c, amended by 2014 PA 315, provides that a person who operates a motor vehicle on a public highway or other place open to the general public or generally accessible to motor vehicles within this state, including an area designated for the parking of vehicles, is considered to have given consent to chemical tests of his or her blood, breath, or urine to determine the amount of alcohol, controlled substance, or, effective January 12, 2015, another intoxicating substance, or any combination of them, if the person is arrested for one of the enumerated crimes in the statute, including the principal drunk driving offenses along with several other major driving offenses, and the officer has reasonable grounds to believe the driver was operating a vehicle in violation of section 625 of the Michigan Vehicle Code (MCL 257.625) (see §12.10 for the complete list).

For the administration of the data master or blood or urine test, the laws require the police to read you statutory chemical test rights. You have the right to refuse the test but if you do you will have your license suspended automatically by the Secretary of State unless you request an implied consent hearing to contest the suspension within 14 days of your arrest.  A Request for Hearing form is attached to the Michigan Temporary Driving Permit given to the you after the police take your drivers license in accordance with MCL 257.625g or on your release from jail following a drunk driving arrest. The penalty for a first implied consent refusal is a one-year suspension of driving privileges. MCL 257.625f(1). A second refusal within seven years is punishable by a two-year suspension. Id. In addition, six points will be placed on the individual’s traffic record for any implied consent refusalMCL 257.320a(8).

You have a right after taking the test to demand that you have a blood test taken at a place of your own choosing, you will be responsible for the cost of the test. If you refuse the test, the police can call a magistrate to court order a blood test against your will.  This will take time to conduct and as time goes by generally your blood alcohol will go down.  But one will run the risk of losing his or her license for failure to take the data master test.  You can contest the fact that you refuse if you make a timely request for implied consent hearing. There will only four issues addressed at the hearing and the Secretary of State hearing officer will judge the facts as they apply to the law. The issues are:

(a) Whether the peace officer had reasonable grounds to believe that the person had committed a crime described in [MCL 257.625c(1)].

(b) Whether the person was placed under arrest for a crime described in [MCL 257.625c(1)].

(c) If the person refused to submit to the test upon the request of the officer, whether the refusal was reasonable.

(d) Whether the person was advised of the rights under [MCL 257.625a(6)].

If the hearing office finds that these four issues favor the police officer your license will be revoked for a year. In a perfect world it would be best to call an attorney for advice, but the police do not and generally will not let you consult an attorney before you make your decision.